U.S. Alert – State Dept. Changes Standard for Assessing ‘Residence Abroad’ for F-1 Non-immigrant Students

State Dept. Changes Standard for Assessing ‘Residence Abroad’ for F-1 Nonimmigrant Students

The Department of State recently changed language regarding the way in which F-1 student visas are adjudicated. An amendment to the Foreign Affairs Manual at 9 FAM 402.5-5(E)(1) revises the “Residence Abroad Required” provision. The new provision states:

Examining Residence Abroad: General rules for examining residence abroad are outlined in 9 FAM 401.1-3(F)(2). If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b). To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT. The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.

The old provision stated, in relevant part:

The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas. The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa. It is natural that the student does not possess ties of property, employment, family obligation, and continuity of life typical of B visa applicants. These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing his or her future plans. Student visa adjudication is made more complex by the fact that students typically stay in the United States longer than do many other nonimmigrant visitors.

The residence abroad requirement for a student should therefore not be exclusively connected to ties. You must focus on the student applicant’s immediate intent. Another aspect to consider: students’ typical youth often means they do not necessarily have a long-range plan, and hence are relatively less likely to have formed an intent to abandon their homes. Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities. That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.

It is not yet clear how this update will affect future adjudications of the F-1 student visa. It will be important for applicants to emphasize their intent to leave the United States at the end of their studies or optional practical training.

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